To Oliver Wolcott, Junior
[New York, November 9, 1796]
I received yesterday your letter of the 6th & immediately wrote some additional letters to the Eastward1 enforcing what I had before written. Pensylvania does not surprise me.
I have reconsidered the opinion given to you on the 3d,2 & see no reason to change it. The reasoning which leads me to the conclusion has not been sufficiently explained. I will therefore be more particular.
The articles in our Treaty with France which respect the subject are the 17th and 22.3
The 17th consists of two parts—1st It grants asylum in our ports for French Ships of War and privateers, with their prizes, and with liberty to carry them freely thence to their own ports. 2 It prohibits the giving refuge in our ports to such as shall have made prize of the subjects or property of the French. It grants no right to sell prizes in our ports—neither does the letter of the article prohibit prizes made of the French from coming into our ports—it only prohibits the instrument of making the prizes. But the construction justly adopted by the President was that the prohibition, in its true spirit, excluded the bringing in of prizes whether coming with or without the capturing Vessels.4 Tis upon this part of the Treaty alone that prizes made by national Vessels of G Britain were excluded from our Ports. For
The 22d. article with France is wholly confined to privateers—prohibitting those of other nations to fit, or to sell their prizes, in our ports. This article, if it had stood alone, would have left us as free to admit British national Ships, with their prizes, into our ports, as our 24th article with Great Britain leaves us free to admit French National Ships with their prizes.5 For these articles are the exact equivalent of each other. So that, as before remarked, the prohibition to the coming in or sale in our ports of prizes made upon the French by British National Ships was derived by construction & implication from the 17 article of our Treaty with France.
It follows that this article was considered as competent to prevent the coming in and sale of Prizes.
If so, the same or equivalent terms in the British Treaty must be competent to the same thing.
Now the 25th article of our Treaty with Great Britain6 has equivalent terms. We there read that “no shelter or refuge shall be given in their ports to such as have made a prize upon the subjects or citizens of either of the contracting parties, but if forced by stress of weather or the danger of the sea to enter therein, particular care shall be taken to hasten their departure and to cause them to retire as soon as possible.” This prohibition includes here, as in the 17th article of our Treaty with France, a prohibition to sell prizes in our ports, not the prizes of privateers only but prizes generally.
But France, it is answered, had a prior right by the 17th article of our Treaty with her, to come and bring prizes into our ports.
True, she had this right, and must have it still, notwithstanding the 25 article of our Treaty with Great Britain, but she had no prior right by Treaty to sell prizes in our ports and consequently, as the 25 article of our Treaty with Great Britain excludes, as the minor of a major, the selling of prizes in our ports—the exclusion so far is in force, because it contravenes no prior right of France. As far as the Treaty with France gives a right inconsistent with the above 25 article, that right forms an exception, but the exception must be only coextensive with the right. The conclusion is that France retains the right of Asylum, but is excluded from the right of selling. This gives effect to the 25 article with Great Britain—as far as the Treaty-right of France does not require an exception.
And this construction ought to be favoured, because it best comports with the rule of neutrality.
It will also best agree with the Presidents former decisions. He permitted France to sell prizes, not because Treaty gave her a right—but because he did not see clearly any law of the Country or of Nations that forbid it. But consistency does not require that this permission shall continue if there be any thing in the Treaty with G Britain against it. Consistency however does require that the same latitude of construction should be given to the 25 article of our Treaty with G Britain as was before given to the 17th article of our Treaty with France. The same latitude will, as I apprehend, exclude the sale of Prizes by France in the case in question.
I regret extremely the publication of the Reply to Adet,7 otherwise than through the channel of Congress. The sooner the Executive gets out of the news Papers the better. What may now be in its power will depend on circumstances which are to occur.
Oliver Wolcott Jun Esq
ALS, Connecticut Historical Society, Hartford; copy, Hamilton Papers, Library of Congress.
4. The “construction … adopted by the President” was announced in “Treasury Department Circular to the Collectors of the Customs,” August 4, 1793.